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Andrew K, Schultz (215917)
WITHERSPOON & SIRACUSA
4550 Bryant Street, Suite 725 ELECTRONICALLY
San Francisco, CA 94103 FILED
Teemene 0) 2184 spol bate
ountly of San Francisco
Email aschultz@witsir.com
Quit SEP 26 2013
Attorneys for Herb Thomas, Clerk of the Court
Successor Trustee BY: ELIZABETH FONG
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
NUMBER: PTR-06-288755
MEMORANDUM OF POINTS AND
AUTHORITIES
THE ROSIA L. HART
REVOCABLE TRUST
dated May 19, 2004
Date: September 30, 2013
Time: 9:00 a.m.
Dept’ Probate, Room 204
Cross Ref: Case No. PCN-06-288756
The Conservatorship of Rosia Lee Hart
ee Nee oe NN et ee et te tN
4. On June 10, 2013, Rosia Lee Hart, a.k.a. Rosia L. Hart, the settior of the Rosia
L. Hart Revocable Trust dated May 19, 2004 (hereinafter, the “Trust’), filed herein her Petition
for Order Approving First Amendment to Rosia L. Hart Revocable Trust dated May 18,
2604, which is currently scheduled for hearing on September 30, 2013.
2. On September 5, 2013, Objector, Herb Thomas, as Successor Trustee of the
Rosia L. Hart Revocable Trust, filed herein Objections to Petition for Order Approving First
Amendment to Rosia L. Hart Revocable Trust, which he now supplements with this
memorandum of points and authorities.
MEMORANDUM OF POINTS AND AUTHORITIES I CASE No. PTR-06-288755Oo 2 WV A Rh R YW oe
BR BRB MR NM NR ON ON Me oe RB Ee Be oe oe oe eS oe
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3. in the California Probate Code, there is no statute in Division 9, Trust Law,
sections 15000 - 19403, which sets forth the capacity required to execute, amend or revoke a
trust. In past attempts te address the issue, California courts have typically referred to the
established standards of testamentary capacity and contractual capacity.
4, California courts began to formulate the standard for testamentary capacity
about a century ago, long before trusts became an estate planning staple. When reviewing
will contests on appeal, courts favored the validity of wills by holding contestants to a relatively
stringent and specific burden of proof. In early cases such as Estate of Chevallier (1911) 159
Cal. 161 and Estate of Perkins (1925) 195 Cal. 699, the Supreme Court required that the will
contestant prove that the testator suffered either general mental incompetence or a specific
hallucination or delusion, eventually focusing on the question of whether, at the time the will
was made, the testator
had sufficient mental capacity to be able to understand the nature of the act he is
doing, to understand and recollect the nature and situation of his property, and to
remember, and understand his relations to, the persons who have a claim on his
bounty and whose interests are affected by the provisions of the instrument. Estate of
Sexton (1926) 199 Cal. 759, 764.
Thus, the ability to transact even ordinary business was rejected as a standard for testamen-
tary capacity. Moreover, consistent with their policy of favoring the validity of wills, the
appellate courts adrnonished triers of fact to look past superficial evidence of eccentricity,
weakness and decline.
it has been held over and over again in this state that old age, feebleness, forgetful-
ness, filthy personal habits, personal eccentricities, failure to recognize old friends and
relatives, physical disability, absent-mindedness and mental confusion do not furnish
grounds for holding that a testator lacked mental capacity. Estate of Selb (1948) 84
Ca. App.2d 46, 49.
5. Probate Code section 6100.5, first enacted in 1985, was intended to codify the
common law rules that favored findings of capacity such that the preceding case law remains
valid. Section 6100.5 provides:
{a) An individual is not mentally cornpetent to make a will if at the
time of making the will either of the following is true:
{1} The individual does not have sufficient mental capacity to
be able to (A) understand the nature of the testamentary act, (B) under-
stand and recollect the nature and situation of the individual's property,
MEMORANDUM OF POINTS AND AUTHORITIES Zz Case No. PTR-06-288755,2 Oo NV A HB BR Rm
ROR RR NNN eet
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or (C) remember and understand the individual's relations to living
descendants, spouse, and parents, and those whose interests are
affected by the will.
(2) The individual suffers from a mental disorder with symp-
toms including delusions or hallucinations, which delusions or hallucina-
tions result in the individual's devising property in a way which, except
for the existence of the delusions or hallucinations, the individual would
not have done.
6. in contrast, the question of contractual capacity is always examined within the
context of the particular contract at issue. Civil Code section 39 (enacted in 1872; restated
without substantive change in 1992) states:
{a) A conveyance or other contract of a person of unsound mind, but not entirely
without understanding, made before the incapacity of the person has been judicially
determined, is subject to rescission...
{b) A rebuttable presumption affecting the burden of proof that a person is of
unsound mind shall exist for purposes of this section if the person is substantially
unable to manage his or her own financial resources or resist fraud or undue influence.
Substantial inability may not be proved solely by isolated incidents of negligence or
improvidence.
In Pomeroy v. Collins (1926) 198 Cal. 46, the Supreme Court held that courts applying Civil
Cade section 39 should apply the following test: “Was the party mentally competent to deal
with the subject before him with a full understanding of his rights? [Citation.] Did he under-
stand the nature, purpose and effect of the contract? [Citation] /o. at p. 69. This test, which
continues to control today,
is aimed at cognitive capacity and specifically asks the question whether the party
understood the transaction which he seeks to avaid. Some contracts require less
competence than others, so the test of understanding varies from one contract to the
next. Smalley v. Baker (1968) 262 Cal.App.2d 824, 832, overruled on other grounds by
Weiner v. Fleischman (1991) 54 Cal.3d 476; In re Rains (9* Cir. 2005) 428 F.3d 893,
901.
Thus, the standards for testamentary capacity and contractual capacity diverged under
California law. With regard to wills, the focus was on the testator’s understanding of the
nature of the testamentary act in the abstract, as well as his or her ability to understand what
she or he owned and to whom he or she was related, not on the complexity of the will itself.
With regard to contracts and other conveyances, however, the inquiry revolved around the
MEMORANDUM OF POINTS AND AUTHORITIES 3 CASE No. PTR-06-288755,@ © WT A Ww & WH
pt pm mete
CO st Of Oe ff WR ee
19
complexity of the document in question. Contestants of more complex instruments had to
prove a lesser level of incapacity.
7. Trusts used for estate planning purposes have a blend of both contractual and
testamentary features, and California appellate courts have not applied consistent standards in
evaluating capacity to make or amend a trust. In Welfon v. Bank of California (1963) 218
Cal.App.2d 527, 541, the Court applied a donative transfer standard to the creation of an
irrevocable inter vives trust. According to the Court in Estate of Bodger (1955) 130 Cal.App.2d
416, 424, “A declaration of trust constitutes a contact between the trustor and the trustee for
ihe benefit of a third party.” in contrast, in Goodman v. Zimmerman (1994) 25 Cal.App.4th
1667, 1673-79, the court applied the standard for testamentary capacity under Probate Code
sections 6100.5.
8. Enacted in 1995, the Due Process in Competence Determinations Act
{(DPCDA)' modernized California law with regard to competence determinations. The DPCDA,
as now codified in Probate Code section 611, requires courts to base incapacity determina-
tions on evidence of deficit in at least one of four listed mental functions: (1) alertness and
attention, (2) information processing, (3) thought processes, and (4) ability to modulate mood
and affect. Section 811 expressly and broadly applies to any judicial determination regarding
capacity to contract, make a conveyance, marry, make medical decisions, execute wills and
execute trusts.
9. The DPCDA also created a standard for capacity determinations, now set forth
in Probate Code section 812, that is applicable “except where otherwise provided by law,
including, but not limited to...the statutory and decisional law of testamentary capacity.” The
legislative history of the DPCDA indicates that section 812 was meant to codify the existing law
of contractual capacity? The operative part of the section states:
' Stats. 1995, Cap. 842, SB 730
? Hankin, A Brief introduction to the Due Process in Competence Determinations Act: A
Statement of Legistative intent (Winter 1995) Vol. 1, No. 4, Trusts & Estate Quarterly 36 - 48.
MEMORANDUM OF POINTS AND AUTHORITIES 4 Case NO. PTR-06-288755OC Fe WM KA WH BB BW De
BS & REBBRE ESE BRAEBEHE AS
..@ person lacks the capacity to make a decision unless the person has the ability to
communicate verbally, or by any other means, the decision, and to understand and
appreciate, to the extent relevant, all of the following:
{a) The rights, duties and responsibilities created by, or affected by the
decision.
{b) The probable consequences for the decisionmaker and, where appro-
priate, the persons affected by the decision.
{c) The significant risks, benefits and reasonable alternatives involved in the
decision.
Thus, contracts generally fail with section 812, but wills are explicitly carved out by the
exception for the “statutory and decisional law of testamentary capacity.” Trust instruments
are therefore neither expressly Included nor excluded.
10. in Andersen v. Hunt (2011) 196 Cal.App.4th 722, the opposing parties placed
the issue of capacity to amend a trust expressly before the Court. One party, citing Walton,
argued that contractual capacity should be required to amend a trust. The other party, citing
Goodrnan, argued that Probate Code's standard for testamentary capacity under section
6100.5 should be sufficient. Recognizing that section 6100.5 refers only to wills, not to
testamentary transfers more generally, the Court found that the trustor’s capacity to execute a
trust amendment “must be evaluated under sections 810 to 812, not section 6100.5" Jd. at
730. Sections 810 to 812 do not provide a single standard for capacity,
but rather provide that capacity to do a variety of acts, including to contract, make a
will, or execute a trust, must be evaluated by a person's ability to appreciate the
consequences of the particular act he or she wishes to take [emphasis in original].
More complicated decisions and transactions thus would appear to require greater
mental function; less complicated decisions and transactions would appear to require
less mental function. id. at 730.
Thus, the Court in Andersen v. Hunt held that a trustor's capacity to execute a trust amend-
ment could not be evaluated generally or in the abstract, but only with respect to a specific
trust amendment. In Andersen v. Hunt, none of the contested amendments did more than
provide the percentages of the trust estate that the trustor wished each beneficiary to receive.
in view of the amendments’ simplicity and testamentary nature, the Court concluded that they
were indistinguishable from a will or codicil and thus, the trustor’s capacity to execute the
MEMORANOUM OF POINTS AND AUTHORITIES 3 CASE No. PTR-06-288755Cw 8 4S A Hh BR YB Nm
me ye RP MR RP NM NM OR tt mt
BR GESEBE FF FSA RO REE ARS
amendments should be evaluated pursuant to the standard of testamentary capacity articu-
lated at section 6100.5. éd. at 731. On the other hand, the Court observed that the original
trust document, spanning 16 pages, was complex, suggesting that, had it been that original
trust document at issue, it would have applied a different standard. fd. at 731.
11. As Objector stated in his Objections, he takes no position regarding Mrs. Hart's
request to change the beneficiaries of her Trust. Objector does, however, object to the
request to amend the trust to make Andrew Smith, or in the event that he is unavailable, his
daughter, Jacqueline Smith, successor trustee of the Trust. As the Court noted in Estate of
Sedger, quoted above, a declaration of trust is like a contract between the trustor and trustee
for the benefit of a third party. The capacity required to amend a trust to change the trustee is
more analogous to contractual capacity than testarnentary capacity. Mrs. Hart was evaluated
by Abraham Nievod, Ph.D., J.D., and was found not competent to create or enter into a
contractual relationship.
412. Dr. Nievod explicitly analyzed Mrs. Hart's condition under Probate Code section
811 and 812. Based on the results of the neuropsycholagical testing and his interviews with
Mrs. Hart and others, Dr. Nievod found that: 1} Mrs. Hart's ability for sustained attention is
impaired; 2) Mrs. Hart is able to learn new information at a minimal, concrete level but has
significantly impaired memory functions; 3) Mrs. Hart is able to understand and appreciate
quantities but is unable to understand and appreciate complex business decisions; 4) Mrs.
Hart is unable to plan, organize and carry out complex actions in her own rational self-interest,
and 5) Mrs. Hart is unable to use abstract concepts. As a result of these deficits, in Dr.
Nievod’s professional opinion, Mrs. Hart is not competent to plan, direct and execute a
contractual relationship or to make a gift of real property. Furthermore, with reference to
Probate Code section 812, in Dr. Nievod’s professional opinion, Mrs. Hart did not understand
the consequences of her contractual relationship with Gregory Wiggins, and she was not able
to assess the risks, benefits, or reasonable alternatives involved in her contractual relationship
with Mr. Wiggins (Objections, p. 8).
MEMORANDUM OF POINTS AND AUTHORITIES 6 Case No. PTR-06-288755Oo Oe SY A A Be WY Ne
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13. Mrs. Hart was diagnosed by Dr. Nievod in 2006 as suffering from dementia.
Although the rate varies from person to person, dementia is typically progressive. Although it
cannot be verified without further, more current testing, itis very likely that Mrs. Hart's deficits
have increased since 2006.
414, in Andersen v. Hunt, the Court held that a trustor’s capacity to execute a trust
amendment must be evaluated under Probate Code sections 810 to 812 with respect to the
trust amendment in question. Mrs. Hart seeks to amend her trust to change trustees. Mrs.
Hart has been evaluated and found to have a number of the deficits listed under Probate Code
section 814, and those deficits correlate with the ability to choose a successor trustee, which is
analogous to forming a contractual relationship. As set forth in Probate Code section 812,
Mrs. Hart does not understand the rights, duties, and responsibilities created by naming a
successor trustee, nor does she understand the significant risks, benefits and reasonable
alternatives involved in the decision. Mrs. Hart does not possess the requisite capacity to
amend her trust to change trustees.
pate: 112° , 2013 Avon, be Sle ib,
Andrew K. Schultz
Attorney for Herb Thomas
Successor Trustee of The Rosia L. Hart
Revocable Trust
MEMORANDUM GF POINTS AND AUTHORITIES 7 Case No. PTR-06-288755PROOF OF SERVICE BY MAIL
i, the undersigned, declare that | arn employed in the City and County of San Fran-
cisco, i am over the age of 18 years, and | am not a party to the within entitled cause. My
business address is 1550 Bryant Street, Suite 725, San Francisco, California 94103.
i On the date indicated below, | served the attached Memorandum of Points and
| Authorities on each person named below by enclosing a copy in an envelope addressed as
| shown below and depositing the sealed envelope with the United States Postal Service at San
Francisco, California, on _ Sr pie 1 21% with the postage fully prepaid.
Rosia Lee Hart
3133 Crestline Court
Antioch, CA 94531
| Bruce Feder, Esq
685 Market Street, Suite 540
San Francisco, CA $4105
306 Portiand Avenue
Gakiand, CA 94606
Gayle R. Reed
2389 Flatiey Circle
Fairfield, CA 94533
Rosalind Reed Williams
4766 Stonewood Drive
| Fairfield, CA 94534
Pastor Henry Gaines
| 1490 Kennedy Avenue
Weed, CA 96094
Gregory K. Wiggins
| 211 Tanager Way
i Hercules, CA 94547
| Gregory K. Wiggins
PO Box 884621
San Francisco, CA $4188
| Gregory K. Wiggins
| 3101 Crestline Court
Antioch, CA 94534
Reverend Andrew Smith
2709 Lotus Court
Antioch, CA 94531
Jackie (a.k.a. Jacqueline} Smith
2705 Lotus Court
Antioch, CA 94531
|| MEMORANDUM OF POINTS AND AUTHORITIES 8 CASE No. PTR-06-288755oO Oe
PN YW RP YW RN yo tke
BAY & &E BBR BSB DRG E SSE KS
Baum Thornley Architects
efo Cobleniz, Patch, Duffy & Bass LLP
One Ferry Building, Suite 200
San Francisco, CA 94111-4213
Daniel A. Conrad, Esa.
Law Offices of Daniel A. Conrad
1550 Bryant Street, Suite 760
San Francisco, CA 94103
i declare under penalty of perjury under the laws of the State of California that the
foregoing Is true and correct and that this declaration was signed at San Francisco, California,
on the date indicated below.
Dated: tat. 4S Leh Ant Ko Seti
Andrew K. Schultz
MEMORANDUM OF POINTS AND AUTHORITIES S CASE No. PTR-06-288755
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Andrew K, Schultz (215917) WITHERSPOON & SIRACUSA 4550 Bryant Street, Suite 725 ELECTRONICALLY San Francisco, CA 94103 FILED Teemene 0) 2184 spol bate ountly of San Francisco Email aschultz@witsir.com Quit SEP 26 2013 Attorneys for Herb Thomas, Clerk of the Court Successor Trustee BY: ELIZABETH FONG Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO NUMBER: PTR-06-288755 MEMORANDUM OF POINTS AND AUTHORITIES THE ROSIA L. HART REVOCABLE TRUST dated May 19, 2004 Date: September 30, 2013 Time: 9:00 a.m. Dept’ Probate, Room 204 Cross Ref: Case No. PCN-06-288756 The Conservatorship of Rosia Lee Hart ee Nee oe NN et ee et te tN 4. On June 10, 2013, Rosia Lee Hart, a.k.a. Rosia L. Hart, the settior of the Rosia L. Hart Revocable Trust dated May 19, 2004 (hereinafter, the “Trust’), filed herein her Petition for Order Approving First Amendment to Rosia L. Hart Revocable Trust dated May 18, 2604, which is currently scheduled for hearing on September 30, 2013. 2. On September 5, 2013, Objector, Herb Thomas, as Successor Trustee of the Rosia L. Hart Revocable Trust, filed herein Objections to Petition for Order Approving First Amendment to Rosia L. Hart Revocable Trust, which he now supplements with this memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES I CASE No. PTR-06-288755Oo 2 WV A Rh R YW oe BR BRB MR NM NR ON ON Me oe RB Ee Be oe oe oe eS oe OP Ss A Om & WwW BH SY SS YW CS wR BW & WB HN 3. in the California Probate Code, there is no statute in Division 9, Trust Law, sections 15000 - 19403, which sets forth the capacity required to execute, amend or revoke a trust. In past attempts te address the issue, California courts have typically referred to the established standards of testamentary capacity and contractual capacity. 4, California courts began to formulate the standard for testamentary capacity about a century ago, long before trusts became an estate planning staple. When reviewing will contests on appeal, courts favored the validity of wills by holding contestants to a relatively stringent and specific burden of proof. In early cases such as Estate of Chevallier (1911) 159 Cal. 161 and Estate of Perkins (1925) 195 Cal. 699, the Supreme Court required that the will contestant prove that the testator suffered either general mental incompetence or a specific hallucination or delusion, eventually focusing on the question of whether, at the time the will was made, the testator had sufficient mental capacity to be able to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property, and to remember, and understand his relations to, the persons who have a claim on his bounty and whose interests are affected by the provisions of the instrument. Estate of Sexton (1926) 199 Cal. 759, 764. Thus, the ability to transact even ordinary business was rejected as a standard for testamen- tary capacity. Moreover, consistent with their policy of favoring the validity of wills, the appellate courts adrnonished triers of fact to look past superficial evidence of eccentricity, weakness and decline. it has been held over and over again in this state that old age, feebleness, forgetful- ness, filthy personal habits, personal eccentricities, failure to recognize old friends and relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked mental capacity. Estate of Selb (1948) 84 Ca. App.2d 46, 49. 5. Probate Code section 6100.5, first enacted in 1985, was intended to codify the common law rules that favored findings of capacity such that the preceding case law remains valid. Section 6100.5 provides: {a) An individual is not mentally cornpetent to make a will if at the time of making the will either of the following is true: {1} The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) under- stand and recollect the nature and situation of the individual's property, MEMORANDUM OF POINTS AND AUTHORITIES Zz Case No. PTR-06-288755,2 Oo NV A HB BR Rm ROR RR NNN eet eC VW A fh B&B VB NHN = SB © we BW HA HB Ww ee S or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. (2) The individual suffers from a mental disorder with symp- toms including delusions or hallucinations, which delusions or hallucina- tions result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. 6. in contrast, the question of contractual capacity is always examined within the context of the particular contract at issue. Civil Code section 39 (enacted in 1872; restated without substantive change in 1992) states: {a) A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before the incapacity of the person has been judicially determined, is subject to rescission... {b) A rebuttable presumption affecting the burden of proof that a person is of unsound mind shall exist for purposes of this section if the person is substantially unable to manage his or her own financial resources or resist fraud or undue influence. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence. In Pomeroy v. Collins (1926) 198 Cal. 46, the Supreme Court held that courts applying Civil Cade section 39 should apply the following test: “Was the party mentally competent to deal with the subject before him with a full understanding of his rights? [Citation.] Did he under- stand the nature, purpose and effect of the contract? [Citation] /o. at p. 69. This test, which continues to control today, is aimed at cognitive capacity and specifically asks the question whether the party understood the transaction which he seeks to avaid. Some contracts require less competence than others, so the test of understanding varies from one contract to the next. Smalley v. Baker (1968) 262 Cal.App.2d 824, 832, overruled on other grounds by Weiner v. Fleischman (1991) 54 Cal.3d 476; In re Rains (9* Cir. 2005) 428 F.3d 893, 901. Thus, the standards for testamentary capacity and contractual capacity diverged under California law. With regard to wills, the focus was on the testator’s understanding of the nature of the testamentary act in the abstract, as well as his or her ability to understand what she or he owned and to whom he or she was related, not on the complexity of the will itself. With regard to contracts and other conveyances, however, the inquiry revolved around the MEMORANDUM OF POINTS AND AUTHORITIES 3 CASE No. PTR-06-288755,@ © WT A Ww & WH pt pm mete CO st Of Oe ff WR ee 19 complexity of the document in question. Contestants of more complex instruments had to prove a lesser level of incapacity. 7. Trusts used for estate planning purposes have a blend of both contractual and testamentary features, and California appellate courts have not applied consistent standards in evaluating capacity to make or amend a trust. In Welfon v. Bank of California (1963) 218 Cal.App.2d 527, 541, the Court applied a donative transfer standard to the creation of an irrevocable inter vives trust. According to the Court in Estate of Bodger (1955) 130 Cal.App.2d 416, 424, “A declaration of trust constitutes a contact between the trustor and the trustee for ihe benefit of a third party.” in contrast, in Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1673-79, the court applied the standard for testamentary capacity under Probate Code sections 6100.5. 8. Enacted in 1995, the Due Process in Competence Determinations Act {(DPCDA)' modernized California law with regard to competence determinations. The DPCDA, as now codified in Probate Code section 611, requires courts to base incapacity determina- tions on evidence of deficit in at least one of four listed mental functions: (1) alertness and attention, (2) information processing, (3) thought processes, and (4) ability to modulate mood and affect. Section 811 expressly and broadly applies to any judicial determination regarding capacity to contract, make a conveyance, marry, make medical decisions, execute wills and execute trusts. 9. The DPCDA also created a standard for capacity determinations, now set forth in Probate Code section 812, that is applicable “except where otherwise provided by law, including, but not limited to...the statutory and decisional law of testamentary capacity.” The legislative history of the DPCDA indicates that section 812 was meant to codify the existing law of contractual capacity? The operative part of the section states: ' Stats. 1995, Cap. 842, SB 730 ? Hankin, A Brief introduction to the Due Process in Competence Determinations Act: A Statement of Legistative intent (Winter 1995) Vol. 1, No. 4, Trusts & Estate Quarterly 36 - 48. MEMORANDUM OF POINTS AND AUTHORITIES 4 Case NO. PTR-06-288755OC Fe WM KA WH BB BW De BS & REBBRE ESE BRAEBEHE AS ..@ person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following: {a) The rights, duties and responsibilities created by, or affected by the decision. {b) The probable consequences for the decisionmaker and, where appro- priate, the persons affected by the decision. {c) The significant risks, benefits and reasonable alternatives involved in the decision. Thus, contracts generally fail with section 812, but wills are explicitly carved out by the exception for the “statutory and decisional law of testamentary capacity.” Trust instruments are therefore neither expressly Included nor excluded. 10. in Andersen v. Hunt (2011) 196 Cal.App.4th 722, the opposing parties placed the issue of capacity to amend a trust expressly before the Court. One party, citing Walton, argued that contractual capacity should be required to amend a trust. The other party, citing Goodrnan, argued that Probate Code's standard for testamentary capacity under section 6100.5 should be sufficient. Recognizing that section 6100.5 refers only to wills, not to testamentary transfers more generally, the Court found that the trustor’s capacity to execute a trust amendment “must be evaluated under sections 810 to 812, not section 6100.5" Jd. at 730. Sections 810 to 812 do not provide a single standard for capacity, but rather provide that capacity to do a variety of acts, including to contract, make a will, or execute a trust, must be evaluated by a person's ability to appreciate the consequences of the particular act he or she wishes to take [emphasis in original]. More complicated decisions and transactions thus would appear to require greater mental function; less complicated decisions and transactions would appear to require less mental function. id. at 730. Thus, the Court in Andersen v. Hunt held that a trustor's capacity to execute a trust amend- ment could not be evaluated generally or in the abstract, but only with respect to a specific trust amendment. In Andersen v. Hunt, none of the contested amendments did more than provide the percentages of the trust estate that the trustor wished each beneficiary to receive. in view of the amendments’ simplicity and testamentary nature, the Court concluded that they were indistinguishable from a will or codicil and thus, the trustor’s capacity to execute the MEMORANOUM OF POINTS AND AUTHORITIES 3 CASE No. PTR-06-288755Cw 8 4S A Hh BR YB Nm me ye RP MR RP NM NM OR tt mt BR GESEBE FF FSA RO REE ARS amendments should be evaluated pursuant to the standard of testamentary capacity articu- lated at section 6100.5. éd. at 731. On the other hand, the Court observed that the original trust document, spanning 16 pages, was complex, suggesting that, had it been that original trust document at issue, it would have applied a different standard. fd. at 731. 11. As Objector stated in his Objections, he takes no position regarding Mrs. Hart's request to change the beneficiaries of her Trust. Objector does, however, object to the request to amend the trust to make Andrew Smith, or in the event that he is unavailable, his daughter, Jacqueline Smith, successor trustee of the Trust. As the Court noted in Estate of Sedger, quoted above, a declaration of trust is like a contract between the trustor and trustee for the benefit of a third party. The capacity required to amend a trust to change the trustee is more analogous to contractual capacity than testarnentary capacity. Mrs. Hart was evaluated by Abraham Nievod, Ph.D., J.D., and was found not competent to create or enter into a contractual relationship. 412. Dr. Nievod explicitly analyzed Mrs. Hart's condition under Probate Code section 811 and 812. Based on the results of the neuropsycholagical testing and his interviews with Mrs. Hart and others, Dr. Nievod found that: 1} Mrs. Hart's ability for sustained attention is impaired; 2) Mrs. Hart is able to learn new information at a minimal, concrete level but has significantly impaired memory functions; 3) Mrs. Hart is able to understand and appreciate quantities but is unable to understand and appreciate complex business decisions; 4) Mrs. Hart is unable to plan, organize and carry out complex actions in her own rational self-interest, and 5) Mrs. Hart is unable to use abstract concepts. As a result of these deficits, in Dr. Nievod’s professional opinion, Mrs. Hart is not competent to plan, direct and execute a contractual relationship or to make a gift of real property. Furthermore, with reference to Probate Code section 812, in Dr. Nievod’s professional opinion, Mrs. Hart did not understand the consequences of her contractual relationship with Gregory Wiggins, and she was not able to assess the risks, benefits, or reasonable alternatives involved in her contractual relationship with Mr. Wiggins (Objections, p. 8). MEMORANDUM OF POINTS AND AUTHORITIES 6 Case No. PTR-06-288755Oo Oe SY A A Be WY Ne echt pamhtemt fam fk oe 2D FB AW mB BW NM ig 13. Mrs. Hart was diagnosed by Dr. Nievod in 2006 as suffering from dementia. Although the rate varies from person to person, dementia is typically progressive. Although it cannot be verified without further, more current testing, itis very likely that Mrs. Hart's deficits have increased since 2006. 414, in Andersen v. Hunt, the Court held that a trustor’s capacity to execute a trust amendment must be evaluated under Probate Code sections 810 to 812 with respect to the trust amendment in question. Mrs. Hart seeks to amend her trust to change trustees. Mrs. Hart has been evaluated and found to have a number of the deficits listed under Probate Code section 814, and those deficits correlate with the ability to choose a successor trustee, which is analogous to forming a contractual relationship. As set forth in Probate Code section 812, Mrs. Hart does not understand the rights, duties, and responsibilities created by naming a successor trustee, nor does she understand the significant risks, benefits and reasonable alternatives involved in the decision. Mrs. Hart does not possess the requisite capacity to amend her trust to change trustees. pate: 112° , 2013 Avon, be Sle ib, Andrew K. Schultz Attorney for Herb Thomas Successor Trustee of The Rosia L. Hart Revocable Trust MEMORANDUM GF POINTS AND AUTHORITIES 7 Case No. PTR-06-288755PROOF OF SERVICE BY MAIL i, the undersigned, declare that | arn employed in the City and County of San Fran- cisco, i am over the age of 18 years, and | am not a party to the within entitled cause. My business address is 1550 Bryant Street, Suite 725, San Francisco, California 94103. i On the date indicated below, | served the attached Memorandum of Points and | Authorities on each person named below by enclosing a copy in an envelope addressed as | shown below and depositing the sealed envelope with the United States Postal Service at San Francisco, California, on _ Sr pie 1 21% with the postage fully prepaid. Rosia Lee Hart 3133 Crestline Court Antioch, CA 94531 | Bruce Feder, Esq 685 Market Street, Suite 540 San Francisco, CA $4105 306 Portiand Avenue Gakiand, CA 94606 Gayle R. Reed 2389 Flatiey Circle Fairfield, CA 94533 Rosalind Reed Williams 4766 Stonewood Drive | Fairfield, CA 94534 Pastor Henry Gaines | 1490 Kennedy Avenue Weed, CA 96094 Gregory K. Wiggins | 211 Tanager Way i Hercules, CA 94547 | Gregory K. Wiggins PO Box 884621 San Francisco, CA $4188 | Gregory K. Wiggins | 3101 Crestline Court Antioch, CA 94534 Reverend Andrew Smith 2709 Lotus Court Antioch, CA 94531 Jackie (a.k.a. Jacqueline} Smith 2705 Lotus Court Antioch, CA 94531 || MEMORANDUM OF POINTS AND AUTHORITIES 8 CASE No. PTR-06-288755oO Oe PN YW RP YW RN yo tke BAY & &E BBR BSB DRG E SSE KS Baum Thornley Architects efo Cobleniz, Patch, Duffy & Bass LLP One Ferry Building, Suite 200 San Francisco, CA 94111-4213 Daniel A. Conrad, Esa. Law Offices of Daniel A. Conrad 1550 Bryant Street, Suite 760 San Francisco, CA 94103 i declare under penalty of perjury under the laws of the State of California that the foregoing Is true and correct and that this declaration was signed at San Francisco, California, on the date indicated below. Dated: tat. 4S Leh Ant Ko Seti Andrew K. Schultz MEMORANDUM OF POINTS AND AUTHORITIES S CASE No. PTR-06-288755